In an era wherein Copyright protected material can easily be duplicated and disseminated around the globe. It is imperative that there is a desperate need to protect the already protected material against any infringement. One of the remedies available to copyright holders is to issue Take Down Notices to an Internet Service Provider stating that the concerned website hosts any content which infringes the right of the copyright holder. Further, necessary information regarding the infringing content is duly provided and the host website is requested to take down such content. As a signatory to the TRIPS Agreement and being a WTO member country, India has introduced Internet Service Providers liability provisions under Copyright Act, 1957, Information Technology Act, 2000 and rules framed thereunder.
When we talk of internet service providers, most of them come under the purview of Section 2(1)(w) of the Information Technology Act, 2008 (“IT Act”) as intermediaries with respect to any particular electronic records, meaning any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web hosting service providers, search engines, online payment sites, online-auction sites, online market places and cyber cafes, in short mostly every web based service provider under the sun. Though it may be noted that Section 79 of the IT Act provides intermediaries with a safe-harbour against liability for copyright infringement, Section 81 of the IT Act provides that the provisions of Section 79 does not prevent any person from exercising any right conferred under the Copyright Act 1957.
Internet Service Provider’s Liability for Copyright infringement in India Law
As per Section 79(1)(c) of the Information Technology Act, 2000 and Rule 3 clause d of the Intermediary Guidelines Rules, 2011 the Intermediary shall observe due diligence while discharging his duties that there is no infringement of patent, trademark, copyright or other proprietary rights.
Section 52(1)(c) of the Copyright Act,1957 highlights that transient or incidental storage of a work or a performance for the purpose of providing electronic links, access or integration, where such links, access or integration has not been expressly prohibited by the right holder under the purview of fair use of copyright. However, the proviso to the section expounds that if the person responsible for the storage of the copy has received a written complaint from the owner of copyright in the work, complaining that such transient or incidental storage is an infringement, such person responsible for the storage shall refrain from facilitating such access for a period of twenty-one days or till he receives an order from the competent court refraining from facilitating access and in case no such order is received before the expiry of such period of twenty-one days, he may continue to provide the facility of such access.
Therefore, the safe harbour provided to intermediaries is pierced on receipt of information that certain infringing / pirated material is available on its website.
This exception was further discussed by the Delhi High Court in the case of MySpace Inc v Super Cassettes Industries, FAO(OS) 540/2011, C.M. APPL.20174/2011, 13919 & 17996/2015 where it was held that under Section 79(3) of the IT Act read with Rule 3(4) of the Intermediary Guidelines Rules, 2011 an intermediary on receiving “actual knowledge” or upon obtaining knowledge from the affected person in writing or through email to act within 36 hours or more of receiving such information is liable to disable access to such infringing work. If copyright owners, inform the ISPs specifically about infringing works and despite such notice they do not take down the content, then alone is safe harbour denied. However, copyright owners are under a duty to specify the works over which they have copyright. A copyright holders cannot give vague and general lists of its works but will have to give notice with specific details as well as locations of the works, which the ISPs shall remove within 36 hours of receiving such notice as provided under the provisions of the Intermediary Guidelines.
Essentials of a Take Down Notice
It may be clear from the bare perusal of the above that a copyright owner or exclusive licensee is required to issue a notice under Section 52(1)(c) of the Copyright Act,1957 to the intermediary on whose website the infringed / pirated content is visible or accessible.
Rule 75 of the Copyright Rules, 2013 sets out essentials of takedown and the process of delivering such notice. The notice must contain the following:
the description of the work with adequate information to identify the work;
details establishing that the complainant is the owner or exclusive licensee of copyright in the work;
details establishing that the copy of the work which is the subject matter of transient or incidental storage is an infringing copy of the work owned by the complainant and that the allegedly infringing act is not covered under Section 52 or any other act that is permitted under the Act;
details of the location where transient or incidental storage of the work is taking place;
details of the person, if known, who is responsible for uploading the work infringing the copyright of the complainant; and
undertaking that the complainant shall file an infringement suit in the competent court against the person responsible for uploading the infringing copy and produce the orders of the competent court having jurisdiction, within a period of twenty-one days from the date of receipt of the notice.
The Copyright Rules, 2013 further lay down that upon receipt of the written complaint, the person responsible for the storage of the pirated / infringing copy of the original work is required to remove the infringing material within thirty-six hours and take measures to refrain from facilitating such access for a period of twenty-one days from the date of receipt of the complaint or till he receives an order from the competent court restraining him from facilitating access, whichever is earlier.
May I have your Name, Please?
A very challenging aspect of issuing a remedy post infringement stems from the problem of identification of an infringer. As technology has progressed, many a time copyright infringements have been caused through the façade of virtual identities which are most of the times forged, unidentifiable and untraceable.
The Indian courts have used “John Doe” orders or “Ashok Kumar” orders against unidentified persons by passing restraining orders time after time against unknown defendants distributing, displaying, duplicating, uploading, downloading or exhibiting copyrighted work in any manner.
Recently in the case of Eros International Media Limited &Another v Bharat Sanchar Nigam Limited and Others, the petitioners sought a John Doe order to protect rights of the movie “Dishoom” from being uploaded online. A list of 134 URLs and web links were presented before the Bombay High Court, and the plaintiffs requested the Court to grant an injunction directing Internet Service Providers to block access to the 134 URLs/web links. Procedurally, the defendants on receiving such links from the Plaintiffs, would first restrict access to those URLs or web links as required by section 52(1)(c) of the Copyright Act, 1957 for the 21 days as mentioned in the section.
John Doe also came to the rescue of “Udta Punjab” which was leaked two days before its release. The Bombay High Court had ordered for torrent links to be removed or rendered inaccessible.
The intermediary may restore the storage of the work in case the complainant failed to produce the orders of the competent court having jurisdiction, restraining him from facilitating access. Further, in case the complainant fails to produce the orders of the competent court having jurisdiction within the stipulated period, the person responsible for storage shall not be obliged to respond to any further notice sent by the same complainant on the same work in the same location.
Finally, it is apposite to say that Section 52(1)(c) of the Copyright Act, 1957 permits the issuance of take down notices to file-sharing websites to remove infringing content. Intermediaries, aggregators and other Internet service providers or content hosts may take down content when they receive a take-down notice and if they choose to do so unless the same is backed by a court order in which case it shall be mandatory for the party in receipt of any such notice to take down the infringing content from their website. Moreover, such notices also promote the practice of self-regulation to a greater extent as parties hosting the infringing content play a major role in roll out of the take down provisions by taking the content off the racks of their website.
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